Law Final.

Sources of Law

Sources of Law

•Statutes

•Regulations

•Court Decisions/Case Law

•Decrees

•Treaties and Conventions

Public International Law

Treaties, Conventions and Customary International Law

Private International Law

How Does Law Help Business?

Law creates a structure of enforceable rules which enables business to take place in a more predictible manner.

Law creates a mechansim in business transactions for compensation if these rules are not abided by.

International Business Could Be Defined As

Any private economic activity that crosses a national border in any way.

One company investing in shares in a company in another country.

A cross-border licensing arrangement.

Contract

A legally enforceable agreement between two or more parties.

Business deal

Is the core business and economic terms of the proposed transaction. •Once the Business Deal is reached the core business and economic terms are put into a contract – which makes it a legally enforceable agreement.

International Chamber of Commerce

The institutional representative of more than 45 million companies in over 100 countries with a mission to make business work for everyone, every day, everywhere.

Incoterms

Provide specific guidance to individuals participating in the import and export of global trade on a daily basis.

Incoterms Key Points

•WHO PAYS THE COST OF TRANSPORT AND TO WHERE?

•WHO HAS RESPONSIBILITY FOR WHAT?

•WHO BEARS THE RISK OF LOSS?

Treaty or Convention

A legally binding agreement between two or more countries, often incorporated into the local law of the countries which signed it.

Legal dispute

A legal dispute can be viewed as a disagreement between parties and related to the law that cannot be resolved amicably.

Resolving disputes in court

Generally public, often subject to appeal, established procedures, very adversarial.  Parties cannot choose judge.

Resolving disputes by mediation

A more friendly conversation in a room, often facilitated by a third party such as a retired judge. Non-public. Not so adversarial.  Many forms of mediation.

Resolving disputes by arbitration

Not public. Generally not subject to appeal.  Parties can be involved in who judges and makes a decision on the dispute. Many forms of arbitration.

IP Rights Protection

• Ability to exploit the IP for financial gain.

• Research, Development and Innovation Costs and Investments (example, high cost of developing a new drug).

Types of Intellectual Property

•Patent

•Design

•Trademark

•Copyright

•Know-How

Patent owners

Shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.

Trademark

Affords exclusive right for the proprietor of the trademark to use the trademark.

Copyrigt

An exclusive right to print, publish, perform, film, or record literary, artistic, or musical material.

Property licensing

You can through a contract give another person the right to use your Intellectual Property, often for a stated period of time, for a stated amount of money and for a stated geographical area (for example, all EU countries).

Competition

•Lowers prices

•Improves quality

•More Choice

•nnovation

Cartels

•Restrict Economic Competition

•Horizontal: Agreements Between Competitors

•Verticle: Agreements Between Players in the Supply Chain

Invention

The technical solution

Patent

The protection given to the invention. It gives the holder of the patent exclusivity/a monopoly for a period of time. 

Conditions for Patent Registration

• Must be new

• Must involve an “inventive step”

• Must be susceptible to industrial application. 

Patent Cooperation Treaty (1970

Notification in one place but examination in different offices and validation is a different step.

The Bolar Exception (1803)

Exception to patent exclusivity for acts done for experimental purposes.

Steps in case of patent infringement

• Go to court to confirm it.

• Get an injunction (court orders that person stop it).

• Give information on what happened.

• Claim damages (money your lost, what it cost you).

Trademarks functions

•Distinguishes goods or services

•Creates a connection between the product and the manufacturer

•Quality Signal

•Advertisement function

•In franchise agreements you get a license (a right) to use the trademark.

Examples of Trademarks

•A word

•A name

•A slogan

•Graphics

•Packaging

•3D Trademarks

•Colors

•Sounds

Absolute refusal of Trademark protection

No products protected (for example because not distinctive.)

Relative refusal of Trademark protection

Only some or similar goods not protected.

The Pre-Socratics

•Rejected traditional explanations in mythology.  

•Looked for rational explanations. 

Pythagoreanism

•Regarding the world as perfect harmony and dependent on numbers.

•Aimed at inducing humankind likewise to lead a harmonious life.

Sophists

•Taught virtue and excellence mainly to young statesmen and nobility.

•Used language and rhetoric to convience.

Socrates

Founder of Western Philosophy.

The Socratic method

Solving a problem by breaking in down into a series of questions which would ultimatlely solve the problem.

Plato

Considered the founder of Western political theory.

Plato’s Republic

Concerns justice, the order and character of the just city-state, and the just man.

Also discusses the theory of forms, the immortality of the soul, and the role of the philosopher and of poetry in society

Plato’s Republic

Considers the nature of existing regimes and proposes a series of different, hypothetical cities in comparison, culminating in Kallipolis, a utopian city-state ruled by a philosopher-king.

Justice (Cephalus)

Giving what is owed.

Justice (Polemarchus)

The art which gives good to friends and evil to enemies.

Justice (Thrasymachus)

Justice is nothing else than the interest of the stronger.

Book I

We can discover the justice in the individual by looking at justice in the state.

Book II

• The origin of justice was in social contracts aimed at preventing one from suffering injustice and being unable to take revenge. After attributing the origin of society to the individual not being self-sufficient and having many needs which he cannot supply himself, they go on to describe the development of the city.

• Socrates suggests that they look for justice in a city rather than in an individual man.

Book IV

•Socrates sees wisdom among the guardian rulers, courage among the guardian warriors, temperance among all classes of the city in agreeing about who should rule and who should be ruled.

•Finally, he defines justice in the city as the state in which each class performs only its own work, not meddling in the work of the other classes.

Book VIII

First, alternate aristocracy (philosopher-king), second, timocratic government, third, olicarghy.

Plato’s Utopia

• The productive class.

• The warrior class.

• The philosopher leadership class.

• All are doing their own job under guidance of the governing part.

Guardian Class

Live restricted communal life. No traditional families. Not allowed to touch money.

The Philospoher Ruling Class

•People with ethical knowledge.

•Extensive education.

•The have extensive knowledge and a desire to make things as good as possible. They are paternalistic. Want to make the city as best as it can be.

Aristotle’s Criticism of Plato’s Utopia

•Gives too much unity to the State and would make it into an individual

•Property should remain private

Foundation of All Modern Day Civil Law

•The legal system of ancient Rome, including the legal developments of over a thousand years, from the Twelve Tables (c. 449 BC) to the Corpus Juris Civilis (AD 529).

•Roman law forms the basic framework for civil law, the most widely used legal system today.

Civil Law Systems

Are based on statutes.

Common Law Systems

Are based on case law and precedent.

Law of the Twelve Tables  c 449 BC

• Stated the rights and duties of the Roman citizen.

• Contained definitions of private rights and procedures.

• Addresses key concepts of justice, equality, and punishment.

Tables I & II

Procedure for Courts and Judges and Further Enactments on Trials  - Addresses court proceedings.

Table III

Execution of Judgment - Addressed enforcement of debt obligations and related matters. Insured financial exploitation would be limited within legal business transactions.

Tables V, VI and X

Estates and guardianship, ownership and possession, and religion.

Table VII

Boundary disputes are settled by third-parties.

Table VIII

Laws dealing with litigating wrongs that occur between citizens.

Jurists’ functions

• Gave legal opinions at the request of private parties.

• Advised the magistrates who were entrusted with the administration of justice.

• Some jurists held high judicial and administrative offices themselves.

The Leviathan

•Everyone seeks his or her own selfish pleasures and gratification.

•There is no morality.

•There is no such thing as law or justice.

The Leviathan (In condition of nature)

• There is constant fighting or fear of being attacked.

• There is no sense of security.

• Life is “solitary, poor, nasty, brutish and short.”

In order to escape the State of Nature

•People establish a Commonwealth by mutual consent.

•Each individual agrees to obey the commands of a common sovereign.

The Sovereign

•Could be an individual.

•Could be a group of people such as an aristocracy or democracy.

The power of the sovereign

•Is absolute.

•Can do no wrong.

•Answerable to no person.

•Has authority to make laws and to punish.

•Subjects cannot challenge or will return to State of Nature.

Soverign’s Obligation

Protect the people

Basis of Hobbes’ Approach

Based on egoism and hedonism.

Natural Right (Jus Naturale)

• You have a natural right to do whatever you want.

• The RIGHT OF NATURE, which Writers commonly call Jus Naturale, is the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto.

First Natural Law

A person discovers by reason it is in the person’s interest to obey.

Second Natural Law

A person should be willing to escape the State of Nature to give up the Natural Right to do all things if others are as well and accept so much liberty against other people and other people have against you.

Contract

• The mutuall transferring of Right.

• There is difference, between transferring of Right to the Thing; and transferring, or tradition, that is, delivery of the Thing it selfe. For the Thing may be delivered together with the Translation of the Right; as in buying and selling with ready mony; or exchange of goods, or lands: and it may be delivered some time after.

Third Natural Law

• People perform their covenants made. People perform their contracts.

• That Men Performe Their Covenants Made: without which, Covenants are in vain, and but Empty words; and the Right of all men to all things remaining, wee are still in the condition of Warre.